United States Court of Appeals

Fifth Circuit



## FILED

August 4, 2004

Charles R. Fulbruge III

Clerk 

## In the 

# United States Court of Appeals

for the Fifth Circuit

___________________



### m 03-51167

Summary Calendar

___________________



### P ERSEVERANDA 

### C LAYTON



### ,

Plaintiff-Appellant,

VERSUS



### D ONALD 

### H. R UMSFELD



### , S ECRETARY

, D EPARTMENT OF D EFENSE

, A RMY /A IR F ORCE E XCHANGE

,



### Defendant-Appellee.

___________________

Appeal from the United States District Court

for the Western District of Texas



### m SA-02-CV-231

___________________2

Before S MITH , D E M OSS , and S TEWART

, Circuit Judges.

J ERRY E. S MITH , Circuit Judge. *

The plaint iff, Per severanda Clayton, is an

Asian female who worked as a Safety and

Security Supervisor at Randolph Air Force

Base from Ju ly 1997 to January 2000. She

sued her employer, the Army/Air Force Exchange Service, via the Secretary of Defense,

for employment discrimination and retaliation

under title VII. The district court entered

summary judgme n t for the government, and

we affirm.

Clayton seeks to show that certain events

constituted adve r se employment actions necessary for a claim of retalia t ion. In addition,

she asserts that the district court i ncorrectl y

determined that her c laims of demotion and

constructive discharge were not admin i stratively exhausted. In the alternative, she maintains that legal technical

i ties should not obstruct her claims of demotion and constructive

discharge.

In Novem

ber 1998, Kelley Hughes, who

had previously worked at Lackland Air Force

Base, was selected over Clayton for a supervisory position at the Army/Air Force Exchange

Service. Hughes became Clayton’s first line

supervisor. Clayt o n alleges that during this

time, she was the subject of disparaging comments and continuous scrutiny over her work

performance by Hughes.

Clayton received a letter of warning in September 1999, an unsatisfactory special performance appraisal in December 1999, and a demotion by her second-line supervisor, General

Manager Daniel Metsala, from her supervisor

po sition to a retail position at Lackland Air

Force Base. Clayton took sick leave and never

reported to work there. She was discharged in

May 2001 pursuant to regulations that require

termination if the employee has not returned to

work within one year.

Clayton requested and received an evidentiary hearing before an administrative law

judg e (“ALJ”) on September 20, 2001. The

ALJ issued a decision in favor of the governm ent on October 29, 2001, whereupon Clay

ton sued.

Summary judgment is a ppropriate where

the pleading s, answers to interrogatories, admissions on file, and affidavits show that there

is no genuine issue as to any material fact and

that the moving party is ent itled to judgment

as a matter of law

. C elotex Corp. v. Catrett

, 477 U.S. 317, 322 (1986). The movant bears

the init ial responsibil

it y of demonstrating the

absence of a genuine issue of material fact with

respe ct t o those issues on which he bears the

burde n of proof at tri al

. T ransamerica Ins.

Co. v. Avenell , 66 F.3d 715, 718 (5th Cir.

1995) (per curiam). Once the burden of showing an absence o f a genuine issue of material

fact has been me t , the nonmoving party must

establish the existence of evidence creating an

issue of fact that can be properly characterized

as outcome determinative. Hanchey v. Energas Co. , 925 F.2d 96, 97 (5th Cir. 19 90). A

summary judgment is reviewed de novo

. Scales v. Slater

, 181 F. 3d 703, 708 (5th C ir.

1999).

* Pu rsuant to 5 T H C IR

. R. 47.5, the court has

determined that thi s opinion should not be published and is not precedent except under the limited

circumstances set forth in 5 TH C IR

. R. 47.5.4.3 I.

Ti t le VII provides in relevant part that “it

shall be an unlawful employment practice for

an employer to discriminate against any of his

employees

. . . because he has made a charge

. . . under this subch apter.” 42 U.S.C.

§ 2000e-3(a). A retaliation claim has three elements: (1) The employee engaged in activity

protected by title VII; (2) the employe r took

adverse employment action agai nst the employee; and (3) a causal connection exists between that protected activity and th e adverse

employment action. S hirley v. Chrysler First,

Inc ., 970 F.2d 39, 42 (5th Cir. 1992).

A title VII plaintiff may recover only if t he

challenged employment decision rises to the

level of a n “adverse employment action or

must materially affect the terms and conditions

of employment.” Mattern v. Eastman Kodak

Co.

, 104 F.3d 702 (5t h Cir. 1997). This is

t rue for both discrimination and retaliat io n

claims. B arrow v. New Orleans S.S. Ass’n

, 10

F.3d 292, 298 (5th Cir. 1994). An adverse

employment action could include a discharge,

demoti o n, refusal to hire, refusal to prom ote,

reprimand, or acts of sabotage by employees

agai nst other employees, either condoned or

directed by an employer for the purpose of est ablishing cause f

or discharge. M

attern

, 104

F.3d at 707. Alternatively, merely placing a

memorandum regarding an employee’s performance in his personnel file does not in itself

constitute an adverse employment action. Id.

Also, lowered performance rat i ngs are not

advers e employment decisions. D ouglas v.

DynMcDermott Petroleum Operations Co.

, 144 F.3d 364, 373 (5th Cir. 1998).

Title VII was designed to address ultimate

employment decisions, not every decision by

employers that arguably might have some tangential effect on those ultim at e decisions. Dollis v. Rubin

, 77 F.3d 777, 781-82 (5th Cir.

1995). Specifically, ultimate employment decisions include act s such as hiring, granting

leave, discharging, promoting , and compensating. I d. at 782. Interl ocutory or intermediate

decisions that can lead to an ultimate decision

are insufficient to support a prima facie case

of retaliation. M

attern

, 104 F.3d at 708. Consequently, the “ultimate employment decision”

doctrine requires that act ionable adverse employment actions “have more than a mere tangential effect on a possible future ultimate employment de cision.” M

ota v. Univ. of Tex.

Houston Healt h Sci. Ctr. , 261 F.3d 512, 519

(5th Cir. 2001) (quoting Walker v. Thompson

, 214 F.3d 615, 629 (5th Cir. 2000)).

We use a balancing test to determine

whether title VII’s protections may be denied

to an employee regarding actions that adversely affect his performance. J ones v. Flagship

Int’l

, 793 F.2d 714, 727 (5th Cir.1986). The

emp lo yer’s right to run its business must be

balanced against the right of the emplo yee to

express his grievances and prom ote his own

welfare. Id. The employee’s conduct must be

measured as reasonable in light of the circumstances. Id.

“[A] retaliation claim cannot be based solely on an employer’s act of ‘limit in g’ an employee ‘in any way that would deprive [that

employee] of employment opportunities

. . . .’”

Burger v. Cent. Apartment Mgmt., Inc.

, 168 F.

3d 875, 878-79 (5th Cir. 1999) (quoting 42

U.S.C. § 2000e-2(a)(2) (brackets in original)).

Therefore, unlawful e mployment practices

include only ult i mate employment decisions

and not vague harms.” Id. at 879.

The actions descr ibed by Clayton are too

t angential to be ultimate employment decisions. Although t hose acts may be seen as4

limit ing her, they are not ultimate employment

actions. Specifically, the actions she maintains

are adverse employment actions include possible spying, a non-promotab le rating, scrutinization, a letter of warn i ng, rejection of

Clayton’s request to have a third person of her

choosing present at weekly meetings with her

supervisors, an eventual demotion and transfer

to Lackland Air Force Base, and exclusion and

unfair treatment.

The district court correctly determined that,

with the exception of the demotion with transfer, the actions described are not adverse

employment actions. Analogous to the events

in Mattern , 104 F.3d at 708, the events Clayton com plains of are similar to disciplinary

filings and supervisor reprimands. Accordingly, the district court properly found that, with

the exception of her demotion and possible

constructive discharge, the acts Clayton relies

on are impertinent, and summary judgment

was properly granted.

II.

Courts have no jurisdiction to consider title

VII claims as to which the aggrieved party has

not exhausted administrative remedies. Nat’l

Ass’n of Gov’t Emplo yees v. City Pub. Serv.

Bd., 40 F.3d 698, 711 (5th Cir. 1994) (citing

Tolbert v. United States

, 916 F.2d 245, 247-

48 (5th Cir. 1990) (per curiam)). The primary

purpose of the administrati ve exhaustion requirement is to allow the agency, in its investigatory and conciliato ry role, fully to investigate and attempt to resolve claims of discrimination. N

icol v. I m agematrix, Inc

., 767 F.

Supp. 744, 752 (E.D. Va. 1991). A title VII

suit, how ever, “may extend as far as, but not

further than, the scope of the EEOC investigation which could reasonably grow out of the

a dministrative charge.” F ine v. GAP Chem.

Corp.

, 99 5 F.2d 576, 578 (5th Cir. 1993). Furthermore, a title VII cause of action may be

based not only on the specific complaints made

in the in it ial EEOC charge, but also on any

kind of discrimination like o r rel ated to the

charge’s allegations, limit ed only by the scope

of the EEOC investigation that could reasonably be expected to grow out o f t he initial

charge of discrimination. Id.

The crucial element of a charge of discrimination is the fact ual statement contained

therein. S anchez v. Sta ndard Brands, Inc.

, 431 F.2d 455, 462 (5th Cir. 1970). Next, the

administrativ e charge must be viewed in its

broadest reasonable sense in order effectively

to attempt to eliminate, by the administrative

process, possible discriminatory practices and

policies. I

d. at 467 . One of the central purposes of the charge is to put the employer on

notice of the existence and nature of the charges. M anning v. Chevron Chem. Co.

, 332 F.3d

874, 878-89 (5th Cir. 2003).

To notify empl oyers adequately about the

nature of the charges against them, employees

must inform their employers from the outset

about their claims of discriminatio n. I d. Alternatively, allowing a complaint to encompass

allegations outside the ambit of the predicate

EEOC charge would circumvent the EEOC’s

investigatory and conciliatory role, as well as

deprive the charged party of notice of t h e

charges. B abrocky v. Jew el Food Co. , 773

F.2d 857, 863 (7th Cir. 1985).

The district court found that the administrative record of Clayton’s EEOC charge indicates that she did not raise the issue of her

constructive discharge in the administrative

process. Clayton suggests that she relied on

constru ct ive discharge in her response to the

motion for s u mmary judgment. Because,

however, she did not raise the issue in the ad-5

ministrative proc ess, she did not exhaust her

remedies.

Consequently, the government was not put

on notice of the constructive discharge claim.

In addition, Clayton did not object to the framing of the issue by the EEOC and the ALJ,

which issue did not include her demotion

claim. Thus, Clayton’s demo t ion claim was

abandoned, and the employer was not given

the opportuni ty effectively to try to eliminate

possible discriminatory practices and policies.

Accor dingly, the district court correctly entered summary judgment.

III.

Mindful of the remedial and humanitarian

underpinnings of title VII and o f the crucial

role played by the private litigant in the statutory scheme, court s construing title VII have

been reluctant to allow procedural technicalities to bar claims brought under the Act. S anchez

, 431 F.2d at 461-62. Title VII is designed to protect the many who are unlettered

and unschooled in the nuances of literary

draftsmanship. I

d. at 465. Verbal precision

and finesse are not required from those whom

the statute is meant to protect

. Id. Furthermore, to compel the charging party specifically

to artic ulat e, in his charge, the full array of

discrimination he may have suffered may cause

t he very persons title VII was designed to

protect to lose that benefit because they are

ignorant of, or unable thoroughly to describe,

the discriminatory practices to which they have

been subjected. Fellows , 701 F.2d at 451.

Clayton points out that she is not an attorney, nor does she have any legal background,

training, or education. She was not represented by counsel at the September 20, 2001, EEO

hearing. She asserts that it is inconceivable

that her right to assert a claim of disciplinary demotion should be cut off because she failed

to object to the ALJ’s framing of the is sues

during th e hearing. Clayton mistakenly asserts, however, that her failure t o notify her

employer of charges is a procedural technicalit y, for, if

she is allowed to circumvent the

administrative processes, the EEOC will not be

able to serve in its investigatory and conciliatory role.

Clayton’s case is distinguishable from Sanchez

, on which she relies. There, we held that

failure to check the appropriate box indicating

the reason for the claim of discri mination on

the EEOC charge form, and failure to use the

exact words in harmony with ea rlier charges,

were technical niceties that would not prevent

a plaint iff from brin ging a civil action. S anchez

, 4 31 F.2d at 464. By way of contrast,

Clayton’s claims of demotion and constructive

discharge did not reflect the essence of the

other charges.

This is not a case in which procedural technical it ies are preventing an employee from

properly bringing a claim. Rather, because the

government was not given notice of Clayton’s

constructive discharge and demotion claims,

the EEOC had no opportuni ty to investi gate.

Conseq uently, the district court correctly

granted summary judgmen t on Clayton’s demotion and constructive discharge claims, because they were not admin ist ratively exhausted.

AFFIRMED.